B SIVARAM DUBAI Vs. RRAJAGOPALA MISRA

JUDGEMENT

(1.) This appeal and the revision petitions arise out of an order passed by the learned District Judge of Madura, by which he appointed two new persons as trustees of the Ranga Chattram charities in the place of the two old trustees whose term of office expired after they had held office for five years under the scheme. One of the trustees whose term had so expired sought re-appointment and, as he was not re-appointed, he has preferred this Miscellaneous Appeal and the connected revision petition. Mr. Rajah Aiyar, who appears for the respondents, the newly appointed trustees, raised a preliminary objection that the appeal does not lie; and the answer of Mr. Ganapathi Aiyar was that the matter in dispute is really covered by Section 47 of the Civil P. C. and that an appeal lies. He also argues that we should in any event interfere under our revisional powers because, he says, that the learned District Judge was not entitled to make the appointment complained of, and that, in spite of the terms of the scheme decree, such an appointment could be made only in a suit instituted under Section 92 of the Code after the necessary sanction had been obtained. I think it will be more convenient to deal with the second objection first. To appreciate Mr. Ganapathi Aiyar's argument it is necessary to refer to paragraphs 4 and 15 of the scheme. Paragraphs 4 runs as follows: Each of the two trustees to be appointed by the Court should hold office for a term of five years but should be eligible for re-appointment, and any vacancy in the office of either of the said trustees shall be filled up by the Court.

(2.) Paragraph 15 is to the following effect;-: Liberty is reserved for the parties to the suit or for the Advocate-General to apply to the Court with reference to the carrying out of the directions contained in the scheme.

(3.) Mr. Ganapathi Aiyar argued that the provision in paragraph 4 of the scheme only means that the Court, when approached under Section 92, should have the power to appoint proper trustees in cases of vacancy. He also relied on the decision of the Full Bench in Veeraraghavachariar V/s. The Advocate-General of Madras (1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (F.B.). I am unable to agree with him. That decision only laid down that, in cases where it is sought to effect alterations or modifications of a scheme, the same could be effected only by proceedings taken under Section 92 of the Civil Procedure Code. The question referred to the Full Bench was whether, in cases where liberty to apply is reserved to a person to ask for directions as to the carrying out of a scheme or to move the Court for alterations or modifications of the scheme, applications to have such things carried out could be made in the suit itself or whether the same could be done only by separate proceedings taken under Section 92 of the Civil Procedure Code. At page 4 5 of the judgment of the learned Officiating Chief Justice, who delivered the opinion of the Full Bench, it is mentioned as follows: A scheme having been framed, any modification or alteration of it is in effect a new scheme and the power to frame a new scheme is given only subject to the conditions specified in Section 92.